| Seasonwein Bldgs., Inc. v Stover |
| 2016 NY Slip Op 50071(U) [50 Misc 3d 1210(A)] |
| Decided on January 20, 2016 |
| City Court Of Mount Vernon, Westchester County |
| Seiden, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Seasonwein
Buildings, Inc., Petitioner-Landlord,
against Richard Stover, Respondent-Tenant. |
Petitioner commenced this nonpayment proceeding in October 2015 seeking rental arrears and late fees for the period of May 2015 through October 2015 in the amount of $779.27. The Court awarded a final judgment of possession in the amount of $779.27 plus fees and costs and warrant of eviction with a ten day stay. The judgment and warrant were entered on December 1, 2015.
By Order to Show Cause, dated December 14, 2015, the respondent moves, post -eviction, to vacate the warrant of eviction and for restoration to the premises. The parties appeared for a hearing on the matter on December 16, 2015.
In support of the motion to vacate the warrant of eviction, respondent states that he was given until November 7, 2015 to pay the arrears. He has now presented money orders totaling $1,517 made payable to the landlord. The money orders are dated December 14, 2015.
After considering the evidence presented, respondent's motion for reinstatement to possession is denied. It is well settled in the Second Department, that the authority to vacate a warrant for good cause shown does not survive execution of the warrant (See Davern Realty Corp. v. Vaughn, 161 Misc 2d 550, 616 N.Y.S.2d 683 (Appellate Term [*2]2d Dept. 1994; RPAPL 749). Furthermore, absent an illegal eviction or other compelling circumstance such as an excusable default, fraud, misrepresentation, lack of jurisdiction or other misconduct by an adverse party, the Court will not exercise its inherent authority to vacate its own judgment and warrant (CPLR 5015; Katz v Marra, 74 AD3d 888 (2d Dept 2010)).
While relief from a judgment may be granted pursuant to CPLR 5015, no basis for doing so is shown here. The Court gave respondent an opportunity to pay the rental arrears before execution of the warrant. The money orders that were presented were dated December 14, 2015, after the execution of the warrant of eviction. Here respondent has failed to establish a compelling circumstance justifying restoration to the premises post-eviction (Id.).
Based on the foregoing, respondent's motion for reinstatement to possession of the premises and to vacate the warrant of eviction is denied.
This constitutes the Decision and Order of this Court.